Self-plagiarism

This weekend, as my relaxation reading, I finished Bad Moon Rising: The Unauthorized History of Creedence Clearwater Revival by Hank Bordowitz. I enjoyed it, although it inevitably told the story from the perspective of Stu Cook and Doug Clifford, since John Fogerty wouldn’t be interviewed for his version of events. Although Bordowitz was pretty good at being evenhanded, there were many places where Fogerty was made out to be the bad guy. I can’t help but think, however, that in many ways, Fogerty was right. If he acts as though CCR was his backup band, I’m afraid the facts bear him out. His songwriting, his lead guitar work, and most of all his voice, made CCR what it was. Now, he may have acted like a jerk, and that’s wrong—and he may have refused to let the other guys show off their talents, and that’s worse (perhaps he should have helped Cook and Clifford more when they tried their hands at songwriting on the disastrious Mardi Gras), but it’s not accurate to just say that Fogerty’s contribution to Creedence was equal to that of everyone else. I honestly mean no disrespect to Cook or Clifford—they’re excellent musicians, and they seem like very nice men. But Fogerty (who does not seem like a nice man) is identified with Creedence in a way they aren’t, and if he feels like he’s been deprived of his creation, I understand why.

Now, if you don’t know the story about Fogerty’s solo album Centerfield, you should learn it. He was sued shortly after it came out, because of three songs: “Mr. Greed,” “Zanz Can’t Danz,” and “The Old Man Down The Road.” Saul Zaenz, president of Fantasy records, sued Fogerty for libel for the first two—and rightly so. But Fantasy Records sued Fogerty for “The Old Man Down The Road” because he signed over the copyright to all of Creedence’s works to Fantasy, including their 1970 song “Run Through The Jungle.” Fantasy claimed that Fogerty had plagiarized “Run Through The Jungle” to write “The Old Man Down The Road”!

That case went on for years, and finally resulted in a quick acquittal. Fogerty then sought attorney’s fees, and when he was denied them, went to the Supreme Court, which ruled in Fogerty v. Fantasy, 510 U.S. 517 (1994) that he was entitled to the fees. (The Court noted that “Creedence Clearwater Revival (CCR), recently inducted into the Rock and Roll Hall of Fame, has been recognized as one of the greatest American rock and roll groups of all time.” Id. at 520 n.2).

During the depositions, Fogerty had to go through his entire creative process, explaining how he writes songs and so forth—all quite humiliating to him, I’m sure, and certainly stressful. (He showed up in court one morning wearing a cast on his arm, and had to explain that the night before, he’d thrown a tantrum and punched a chair and hurt his hand.)

Can you imagine? Self-plagiarism. Yet, if you concede the legitimacy of intellectual property rights, isn’t this perfectly reasonable? The possibility of self-plagiarism seems to me to be excellent evidence of the incoherence of a natural right to copyright. Perhaps Professor Bell will comment on the subject.